EU Serbia
is "no longer a safe third country" but Commission
says that readmission "functions smoothly"25.09.2012Deportations of asylum-seekers
from the EU to Serbia look set to continue, despite the United
Nations High Commissioner for Refugees (UNHCR) stating last month
that the Balkan nation should no longer be considered a safe
third country to which to return asylum seekers.

"UNHCR recommends
that Serbia not be considered a safe third country of asylum,
and that countries therefore refrain from sending asylum seekers
back to Serbia on this basis," the international agency
said in a report published last month. [1]

The report went on to
say that Serbia's asylum system, which was operated by the UNHCR
until August 2008:

"Has been unable
to cope with the recent increases in the numbers of asylum applicants.
This has exposed significant shortcomings in numbers of personnel,
expertise, infrastructure, implementation of the legislation
and government support."

The UNHCR's criticisms
add further weight to those made in June by the Hungarian Helsinki
Committee, who issued a report on the Serbian asylum system.
According to the Committee, problems include limited access to
protection and lack of procedural safeguards; risk of chain refoulement
(deportation from Serbia to another country considered "safe");
and danger of asylum seekers becoming destitute. [2]

EU law - namely the Asylum
Procedures Directive - states that Member States may apply the
"safe third country concept" only when its authorities
are satisfied that asylum-seekers' life and liberty will not
be threatened by discrimination; the principle of non-refoulement
is respected; removal from the third country will not lead to
torture or cruel, inhuman or degrading punishment; and the possibility
exists to request and obtain refugee status. [3]

The Commission has stated
that it is "continuously monitoring" the application
of the Asylum Procedures Directive rules and "will not
hesitate to use its powers under the Treaty in case of infringement."

It has so far declined
to do so, despite a Commission report published in August stating
that:

"In the field
of migration, Serbia has not made progress. The legislative framework
largely meets EU standards but remains to be effectively implemented.
Claims are still temporarily processed by the Border Police Asylum
Unit, as the Asylum Office foreseen as the first instance body
has not been formally established yet. The mandate of the Asylum
Commission, the second instance body, expired in April 2012 and
new members remain to be elected. Serbia has two asylum reception
centres, but they have insufficient capacity to provide services
for all asylum seekers." [4]

Despite this, the report
concluded that "readmission between the EU and Serbia
functions smoothly," a finding that may be disputed
by asylum-seekers who have been deported from the EU.

Sending asylum-seekers
to Serbia

The treatment of Serbia
as a safe third country means that under a 2007 agreement, EU
countries are able to deport asylum-seekers (along with irregular
migrants) to the Balkan state if they are judged to have arrived
there before entering Europe.

Hungary "routinely"
deports asylum seekers to Serbia, according to the Hungarian
Helsinki Committee. In 2011, "more than 450 asylum seekers
were deported to Serbia by Hungary without being admitted to
the in-merits procedure."

Those permitted by the
Hungarian authorities to have their applications examined, meanwhile,
typically face being detention for up to five months while their
applications are considered, spending "much of the day
locked in their rooms." [5]

A host of new laws introduced
under the government of Viktor Orbán, which has faced
heavy criticism from the EU, NGOs and Hungaian opposition parties
on several occassions [6], have seen "the human rights
and protection needs of asylum-seekers& overshadowed by law
enforcement objectives in the fight against illegal migration,"
according to the UNHCR. [7]

Technical arrangements

The operation of the EU-Serbia
readmission agreement is monitored by a Joint Readmission Committee
(JRC), made up of representatives of the Commission (representing
the EU) and Serbia. A 2011 Commission document evaluating the
EU's readmission agreement states that:

"Given the growing
role of the EU readmission agreements in the returns process
and their possible interaction in practice with human rights
and international standards, the possibility of inviting relevant
NGOs and international organisations to JRC meetings should be
considered." [8]

When asked whether any
international organisations or NGOs had been invited to meeting
of the EU-Serbia JRC, the Commission replied that "meetings
of the JRC have so far not been attended by participants other
than officials of the Parties to the EU-Serbia readmission agreement."

It is however unclear
what benefits - if any - the participation of third parties in
these meetings may have in ensuring the protection of human rights
standards. The Commission also said that the JRC:

"Is not competent
to discuss issues of international protection. [It] is a body
which monitors the implementation of the EU-Serbia readmission
agreement by exchanging information and discussing implementation
obstacles of a technical nature if and when these arise."

Suspension clauses?

An evaluation of readmission
agreements published by the Commission in 2011 stated that human
rights protection of persons subject to deportation:

"Might be further
reinforced by including in the agreement a suspension clause
which would& provide for temporary suspension of the agreement
of the agreement in the event of persistent and serious risk
of violation of human rights of readmitted persons."
[9]

The Commission said that
since the publication of the evaluation it "has been
endeavouring to include suspension clauses in negotiating directives
for new readmission agreements," although it did not
say whether it would be attempting to renegotiate current agreement
so as to include suspension clauses.

The agreement with Serbia
lasts "for an unlimited period," with the Commission
or Serbia permitted to "completely, or partly, temporarily
suspend" it "with regard to third country nationals
and stateless persons" (i.e. not Serbian nationals)
"for reasons of security, protection of public order
or public health." [10]

The EU's "inhumane
deportation policy"

Aside from asylum-seekers
whom Member States determine should be deported under safe third
country rules, thousands of other people have been removed from
European territory to Serbia in recent years.

According to the organisation
Migreurop, in 2011 Frontex organised seven "collective
deportation flights," to Serbia, the legality of which
"is disputable according to European and international
legislation." The organisation expressed:

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